Chapter

Towards a Moderate Monism: Could International Rules Eventually Acquire the Force to Invalidate Inconsistent National Laws?

Antonio Cassese

in Realizing Utopia

Published in print March 2012 | ISBN: 9780199691661
Published online September 2012 | e-ISBN: 9780191738593 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199691661.003.0015
Towards a Moderate Monism: Could International Rules Eventually Acquire the Force to Invalidate Inconsistent National Laws?

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International law still proves unable effectively to bring about the necessary changes of domestic legislation at odds with international rules. Four measures would be necessary to change this state of affairs. There should be an international judicial body charged with authoritatively establishing, firstly, whether in a specific instance a state has breached a rule imposing to amend national legislation so as to make it consistent with international rules, and, secondly, in the affirmative, enjoining the state to modify its legislation forthwith. A monitoring body should be entrusted with ascertaining whether the state has followed up that ruling. States should pass a constitutional provision stating that any time a national piece of legislation is in conflict with an international norm, such legislation is automatically repealed or, at a minimum, courts, administrative bodies, and individuals are bound to disregard it. Whenever there is a doubt or a dispute on whether national legislation conforms to international rules, national courts as well as natural and legal persons should be empowered to bring the case before an international court, tasked to pass on the matter with legally binding effect. However, the current condition of the world community renders the implementation of the suggested reforms very difficult. Based on the experience of some regional courts, it is suggested that any progress may only occur within regional groupings, not at the universal level.

Keywords: international law; domestic law; international judicial body; monitoring body; national courts; regional courts

Chapter.  7684 words. 

Subjects: Public International Law

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